62-64 Kenyon Street Hartford, LLC et al v. Hartford

Filing 64

ORDER granting in part and denying in part 60 Motion for Reconsideration ; finding as moot 63 Motion for Conference. The parties shall submit supplemental filings addressing the vagueness, takings, and Commerce Clause claims by July 13, 2018 and any response to these supplemental filings, if any, by July 27, 2018. Signed by Judge Victor A. Bolden on 6/8/2018. (Giammatteo, John)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

62-64 KENYON STREET, HARTFORD
LLC,
Plaintiff,
No. 3:16-cv-00617-VAB
v.
CITY OF HARTFORD,
Defendant.

RULING ON MOTION FOR RECONSIDERATION
62-64 Kenyon Street Hartford, LLC, (“Kenyon Street” or “Plaintiff”), a Connecticut
limited liability company that operated a rooming on Kenyon Street in Hartford, and its sole
member, Paul Rosow, filed this lawsuit alleging violations of statutory and constitutional rights
by the City of Hartford (“the City” or “Hartford”). The Rooming House moves for
reconsideration of this Court’s December 29, 2017 Ruling on Defendant’s Motion for Summary
Judgment. See Pl. Mot. for Reconsideration, ECF No. 60; Ruling on Defendant’s Motion for
Summary Judgment (“December Ruling”), ECF No. 58 (finding Mr. Rosow lacked standing and
granting summary judgment on all counts).
For the reasons stated below, the motion is GRANTED in part and DENIED in part. The
Court will allow additional supplemental briefing on the vagueness, Commerce Clause and
takings claims.

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I.

FACTUAL1 AND PROCEDURAL HISTORY
Plaintiff Kenyon Street operated a rooming house at 62-64 Kenyon Street in Hartford,

Connecticut (“Rooming House”). Plaintiff Rosow purchased the property in 1986, but later
transferred the property to Kenyon Street, a limited liability company of which he was the sole
member. December Ruling at 2. In 2014, Mr. Rosow moved to Arizona and he began trying to
sell the property. Id. at 2–3.
On July 13, 2015, the City of Hartford enacted an ordinance that required that any
individual seeking a license to operate a rooming house must reside at the rooming house in
order to obtain a license within certain zones in the city. 26(f) Rep. ¶ 8, ECF No. 18.While the
text of the ordinance applied to all rooming houses within those zones, 62-64 Kenyon Street was
the only rooming house that was affected by the change. Id. ¶ 18.
Mr. Rosow and Kenyon Street filed this lawsuit, alleging the City had wrongfully
targeted him by enacting a residency requirement that only applied to the rooming house. See
generally Compl., ECF No. 1. He alleged that the ordinance was unconstitutional and violated
the federal Fair Housing Act, 42 U.S.C. § 3601 et seq. See Compl. ¶¶ 68-74, 81-84. He also
alleged violations of the Connecticut’s state Constitution, the Connecticut Fair Housing Act,
C.G.S. § 46a-36 et seq., and state zoning laws. Compl. ¶¶ 80-81, 85-87. The City moved for
summary judgment on all counts. Def. Mot. Summ. J., ECF No. 44.
This Court granted summary judgment. See generally December Ruling. First, it
dismissed Mr. Rosow as a plaintiff, finding that he lacked standing because the house had been

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The Court draws from the factual information laid out in greater depth in its earlier ruling. See
December Ruling at 1-5.
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transferred to a limited liability company and, under Connecticut law, the company was the
proper plaintiff. December Ruling at 9.
Second, it dismissed the constitutional violations alleged in Count I. Kenyon Street had
alleged the zoning ordinance unreasonably burdened interstate commerce, violated the Equal
Protection Clause “and/or” the Due Process Clause of both the Connecticut and United States
Constitutions because it lacked a rational basis, was “unconstitutionally void for vagueness,” and
constituted an “unfair taking of the Plaintiff’s Rooming House License and property.” Compl. ¶
72. The Court found that the City’s justification for the ordinance provided a rational basis and
that Plaintiff had submitted no evidence of comparators, defeating both Plaintiff’s class-of-one
and selective enforcement arguments brought under the Equal Protection Clause. December
Ruling at 14, 15–17.
Finally, the Court granted summary judgment with respect to the federal Fair Housing
Act Claim and declined to exercise supplemental jurisdiction over Kenyon Street’s state law
claims. Id. at 18–21.
Plaintiff Kenyon Street now moves for reconsideration of the summary judgment ruling.
It does not challenge dismissal of the state law claims, those under the Fair Housing Act, or of
Mr. Rosow as a party. Instead, Plaintiff challenges the Court’s disposition of what was labelled
Count I in the Complaint, but contains a series of separate and distinct theories of liability for
constitutional violations and brought under 42 U.S.C. § 1983. See generally Pl. Mem. in Support,
ECF No. 60.
II.

STANDARD OF REVIEW
“The standard for granting [a motion for reconsideration] is strict, and reconsideration

will generally be denied unless the moving party can point to controlling decisions or data that

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the court overlooked — matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
“The major grounds justifying reconsideration are an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”
Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)
(internal citations omitted). A motion for reconsideration generally does not allow the moving
party to revisit arguments that have already been presented before the court. See Shrader, 70
F.3d at 257 (“a motion for reconsideration should not be granted where the moving party seeks
solely to re-litigate an issue already decided.”).
III.

DISCUSSION
Plaintiff moves for reconsideration on two grounds. First, it argues that the Court

wrongly granted summary judgment with respect to its equal protection claims on the merits.
Second, it argues that it was not on notice that the other alleged constitutional claims would be at
issue, and therefore the Court wrongly granted summary judgment without providing notice.
Defendant filed a short response, briefly addressing each of the additional claims and arguing
that summary judgment was appropriate.
Plaintiff’s motion largely seeks to re-litigate issues the Court already decided. To the
extent that Plaintiff feels it was not on adequate notice, however, the Court will provide a limited
opportunity for further briefing, only with respect to those claims. These include the void-forvagueness and takings claims, and the claim under the Commerce Clause.
A.

Equal Protection

Plaintiff first seeks to re-litigate the equal protection claims. Pl. Mem. at 12, 17. With
respect to its class-of-one theory, Plaintiff again relies primarily on its argument that the City

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targeted the Rooming House. Pl. Mem at 16–17. These are the same arguments that Plaintiff
raised in opposing the motion for summary judgment and, indeed, the Plaintiff notes that its
arguments “are not new arguments that were not previously advanced.” Pl. Mem. at 17.
Reconsideration is inappropriate where “the moving party seeks solely to re-litigate an issue
already decided.” Shrader, 70 F.3d at 257.
The Court’s decision regarding equal protection rested on two conclusions. December
Ruling at 14, 15-17. First, for class-of-one, the Court noted that the City had provided a rational
basis for distinguishing between the rooming house and other properties, as evidence by the
memo and as evidenced in part by the complaints about the rooming house in the record.
December Ruling at 14. There might have been a disputed issue of material fact — whether the
rationale the city provided was pretextual — had there been some record evidence that other
rooming houses elsewhere in the city had similar complaints and the city chose not to enact a
similar ordinance with respect to those houses. Id. But that evidence was not in the record, and
Plaintiff points to no evidence the Court overlooked.
Second, the Court noted that the record contained no evidence about comparators and
therefore both the class-of-one and selective enforcement claims would fail. December Ruling at
14, 16. At reconsideration, Kenyon Street seems to suggest, in conclusory fashion, that there are
potential comparators. Pl. Mem. at 17 (“[T]here was no dispute that there are other rooming
houses in residential neighborhoods in the City that are similarly situated to the Rooming House
in all material respects for purposes of satisfying the similarly situated element of the Equal
Protection claims.”). Nevertheless, there is no evidence in the record about these comparators,
much less an adequate evidentiary basis to demonstrate “an extremely high degree of similarity
between themselves and the persons to whom they compare themselves.” Ruston v. Town Bd. for

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Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010).2 Summary judgment was therefore
appropriate. See, e.g., Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (“A court may
grant summary judgment in a defendant's favor on the basis of lack of similarity of situation,
however, where no reasonable jury could find that the persons to whom the plaintiff compares
itself are similarly situated.”).
B.

Other Constitutional Claims

Plaintiff also moves for reconsideration on the other constitutional violations alleged in
Count One of the Complaint. Its argument is one predominately of notice: Defendant’s filings
were insufficient to place Plaintiff on notice that claims other than the equal protection claims
were at issue. Pl. Mem. at 7. Therefore, “the Court essentially made a judgment independent of
the Motion before it” and “Plaintiff did not have the requisite opportunity to respond and did not
believe it had to respond . . . .” to these other claims. Id.
Plaintiff, however, failed to file a Local Rule 56(a)(2) statement. See L. Civ. R. 56(a)(3)
(noting, following failure to comply with Local Rule 56, court may “grant[] the motion if the
motion and supporting materials show that the movant is entitled to judgment as a matter of
law.”). By failing to file such a statement, the Court could review the record, where Defendant
had moved on “all” claims, and determine that judgment was appropriate as a matter of law.
In any event, Defendant’s filings at summary judgment did not address the takings,
Commerce Clause, or vagueness theories and, as a result, the Court will grant the motion for
reconsideration and permit further briefing with respect to these three constitutional claims.3 Cf.

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As addressed in the Court’s December Ruling, Plaintiff’s claims fail because of this lack of
evidence, even if one assigns a different standard on the selective enforcement claim. December
Ruling at 16.
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The same is not true of the due process claim. Defendant’s motion for summary judgment
placed Plaintiff on notice that the City was seeking dismissal of the due process claims. See Def
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Nick’s Garage Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 116-18 (2d Cir. 2017) (finding
summary judgment was inappropriate, absent additional notice, on theories raised in the
complaint but not addressed by defendant in filings); see also Fed. R. Civ. P. 56(f) (“After giving
notice and a reasonable time to respond, the court may . . . grant the motion on grounds not
raised by a party; or . . . consider summary judgment on its own after identifying for the parties
material facts that may not be genuinely in dispute.”).
The Court therefore will permit either side to file supplemental briefing, simultaneously,
as to whether the takings, Commerce Clause, and vagueness claims should be dismissed:


IV.

Initial filing due by July 13, 2018.
Response to any initial filing due by July 27, 2018.
CONCLUSION
For the reasons stated above, Plaintiffs’ motion for reconsideration is GRANTED in part

and DENIED in part.
The parties shall submit supplemental filings addressing the vagueness, takings, and
Commerce Clause claims by July 13, 2018 and any response to these supplemental filings, if
any, by July 27, 2018.
SO ORDERED at Bridgeport, Connecticut, this 8th day of June 2018.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge

Mem. at Def. Mem. in Support of Mot. Summ. J. at 5, ECF No. (“A civil rights claimant making
a due process claim in a land use case must meet the clear entitlement test, which asks whether
there is a certainty or a very strong likelihood that the application in question would have been
granted, but for the wrongful conduct of the local officials.”). Therefore, the motion for
reconsideration is denied with respect to any due process claim.
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